A lie told to jurors, sanctioned by the state of Texas

Photo by Texas Department of Criminal Justice

Jurors play a crucial role in our democracy. They provide a link between courtrooms and their communities, ensuring that punishments reflect contemporary values. Through the process of deliberation, their differing perspectives on a case ideally ensure that justice is served. Yet, their role in Texas death penalty trials falls short of this ideal. Texas law has compromised the process of deliberation, thereby threatening jurors’ role in our democracy. As currently written, the law instructs attorneys and judges to mislead capital jurors about their sentencing decisions.

In Texas, capital jurors must answer “special issue questions” that lead them to determine what sentence is imposed. The first asks if the defendant will be a future danger to society, the second, whether there are any circumstances of the crime or defendant’s life that would warrant a life sentence. According to the law, if jurors can’t reach a unanimous decision for death, the defendant receives a life without parole sentence. There are thus only two possible outcomes of their deliberations: a unanimous vote for death, or anything else, which means life without parole.

Texas jurors deliberating a sentence in death penalty trials, however, are told a lie. Texas law requires judges to instruct jurors that at least 10 of them need to agree on their special issue answers in order to sentence a defendant to life without parole.

Jurors are not told that, in fact, the trial court must sentence a defendant to life without parole in any instance where the jury is unable to reach a unanimous consensus on the proper punishment in a capital case. Texas law actually prohibits attorneys and judges in capital cases from telling jurors what the law says – that any outcome other than a unanimous death verdict will result in a life without parole sentence.

For the time being, at least, Texas jurors remain in the dark. The Texas Court of Criminal Appeals has upheld the constitutionality of the state's current instructions, stating that informing jurors of the result of a deadlock would be "an open invitation for the jury to avoid its responsibility and to disagree." The responsibility of a jury, however, is to deliberate, not to agree. Cases from courts outside Texas have struck down similar instructions as a violation of the defendant's rights under the Eighth Amendment, but the issue remains unsettled at the national level, leaving the current law in force in Texas.

My research on Texas capital jurors suggests that this legal misdirection leaves many with a heavy burden they carry with them after making a life or death decision. Shouldn't jurors who are forced to make a potentially life-ending choice be told the truth about their decision-making?

From 2009-2010, I interviewed 21 former capital jurors who served on nine different death penalty cases across the state of Texas. These interviews suggest that jurors worked under a vague and false understanding of the sentencing process. Repeatedly, jurors told me that they believed they had to keep deliberating until they came to a unanimous decision or until 10 jurors agreed. Some thought the judge would declare a mistrial, or even decide for them, if they failed to reach this agreement.

Not one juror that I interviewed assumed what the state law actually says — that the defendant would receive a life sentence if the jury remained deadlocked. The pressure created by this unfortunate misinformation led to instances where jurors who felt a reasonable doubt nonetheless voted for the death penalty — sending the defendant to die based on a misunderstanding of their rights.

A juror whose jury voted for death expressed his belief that their duty was to “stay back there until we had 12 for or 10 and 2 against.” He explained the impact this had their decision on the second special issue question: “at the time there were a large percentage of the jurors that were, that kind of, that were going to vote no. And just uh, um, maybe one or two that, that were going to vote the other way. And, I think we kind of, we kind of felt like this one had to be discussed until either most of us went back and said yes or one or two more came back and said no.” This jury eventually came back with a sentence of death, feeling that they had to reach a 12-0 or 10-2 vote.

Texas lawmakers have a chance to do justice to capital jurors, to inform them of the actual letter of the law, rather than leaving them — and the lives of defendants — at the mercy of their own guesswork.

Robin Conley Riner

Associate professor, Marshall University

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